Knife to satire if human rights law changed

Satire, commentary and historical generalisations such as accusing the Ottoman Empire of genocide could become illegal under the federal government’s plan to toughen anti-discrimination laws, according to media companies and lawyers.

Giving evidence to a parliamentary inquiry into the Anti-discrimination and Human Rights Bill, Fairfax Media lawyer Richard Coleman said political cartoons were already vulnerable under the law and would become more so if the changes went ahead. He cited a cartoon published in The Australian Financial Review showing an image of Italy which had been renamed Berlusconia.

Fairfax, which owns the AFR, faced the Victorian Civil and Administrative Tribunal after Italian-Australians were offended by the cartoon, which was meant to illustrate how much former Italian prime minister
Silvio Berlusconi
had affected the country.

Conceding the cartoon may have offended some, Mr Coleman said such observations were a necessary part of robust political debate in healthy democracies. “In my view it gave rise, in part, to a political campaign by some card-carrying members of Mr Berlusconi’s party in Australia against the AFR conducted through the Italian media in Australia."

A resolution was reached through mediation. “I anticipate that under the proposed legislation such actions will be so much easier to bring," he said.

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Media outlets, including Fairfax, the ABC, News Limited and Sky News, have made a joint submission to the inquiry raising concerns that the laws would have a chilling effect on public debate.

Another example named in yesterday’s hearings was a case involving SBS facing a complaint under the Racial Discrimination Act in 2006 over a documentary on the Ottoman empire titled As it Happened: The Armenian Genocide.

SBS successfully defended itself by showing many academic and historical experts agreed the former Ottoman Empire had engaged in genocide, and also arguing that as the events occurred nearly a century ago it should not be offensive to modern-day Turkish people. Were the draft laws in place, “the outcome may have been dramatically different".

“Irrespective of the documentary’s historical accuracy and academic merit, the conclusions reached by the commission would have hinged on the claimant’s subjective reaction to the documentary, not its objective offensiveness," the submission said.

Free TV Australia chief Julie Flynn said the draft bill, if passed, would affect programming decisions across news, current affairs, comedy and drama. The bill set a very low threshold for discrimination as people could bring claims when they were merely “offended"; there was no objective test for whether the offence was reasonable, as there now is in federal racial vilification laws, and there were no exceptions for media outlets, she said.

“If you put all those things together the net effect is very chilling on all program makers," she said. “If you are having to make a decision about what’s going to go in, you are going to have to be bloody careful," she said.

Kelly Hazell Quill director and media law expert Justin Quill and Minter Ellison employment partner Gareth Jolly said the law would harm freedom of speech.

The bill will amalgamate five state and territory laws covering age, disability, race, sex and other forms of discrimination into a single statute.

The overhaul includes new attributes that can form the basis of discrimination, as well as a shift in the burden of proof. Once a prima facie case is established for discrimination, the accused has to prove their innocence, not the other way around.

People will be able to bring claims for a wider set of attributes, including industrial activity, medical history, nationality or citizenship, political opinion, religion and social origin.

Like other businesses, media outlets are concerned other changes would lift the number of weak or vexatious claims as people who lose cases will no longer have to pay the other side’s legal costs, as generally occurs now.

Queensland Liberal
George Brandis
, part of the Senate committee conducting the inquiry, said the draft bill was a “law against controversy".

Federal Labor MP
Simon Crean
said the government intended to consolidate and simplify the laws without altering them. The parliamentary process allowed for ongoing debate. “This is not a fait accompli; this is up for discussion," Mr Crean told Sky News.